Marks v. State Highway Dep't, (Nos. 6673, 6703.)
| Decision Date | 19 January 1929 |
| Docket Number | (Nos. 6673, 6703.) |
| Citation | 167 Ga. 792,146 S.E. 838 |
| Parties | MARKS et al. v. STATE HIGHWAY DEPARTMENT et al. |
| Court | Georgia Supreme Court |
Rehearing Denied Feb. 18, 1929.
(Syllabus by Editorial Staff.)
[Ed. Note.—For other definitions, see Words and Phrases, Second Series, Relocate.]
Error from Superior Court, Jefferson County; R. N. Hardeman, Judge.
Petition for injunction by W. B. Marks and others against the State Highway Department and others. Judgment for defendants, and plaintiffs bring error, and defendants file cross-bill of exceptions. Reversed on main bill of exceptions; affirmed on cross-bill.
Hamilton Phinizy, of Augusta, for plaintiffs in error.
Pierce Bros., of Augusta, and W. W. Abbot, Jr., of Louisville, for defendants in error.
Syllabus Opinion by the Court.
The exceptions in this case are to parts of the judgment rendered on the application for an interlocutory injunction. The exceptions here presented arise out of the same case as those decided in State Highway Department v. Marks, 167 Ga. 397, 145 S. E. 866. The decision then rendered, as to the issues raised, is the law of the case, and the issues are there stated.
1. Marks et al. complain that the court erred in refusing to enjoin the "relocation" of the road between Augusta and Waynesboro, and thereby substituting what is called the "Peach Orchard route" for the "McBean route." The act of 1921 (Ga. L. 1921, p. 199) provides "that the said highway department in taking over said roads is not bound to the right of way of the roadbeds as located on January 1, 1922, but shall have the right to resurvey and relocate said roadbed and right of way and it shall be the duty of the county or counties in which resurveys and relocations are made to furnish the right of way or the relocation and resurvey free of charge to the said highway department: Provided, that in relocating any road or right of way the state highway department shall confer with the ordinary or county commissioners, as the case may be, and give due consideration to their wishes, but in case of disagreement, the judgment of the state highway board shall prevail." Section 1. To relocate is the same thing as to locate anew. The power to relocate the roadbed of an existing road does not include the power of establishing a new road, and of abandoning entirely the existing road. The power to resurvey and relocate the roadbed and right of way of an old road does not confer the power to lay out an entirely new road. "The authority to locate anew includes the authority to make some departure from the old or existing" road. Cambridge v. Middlesex County, 167 Mass. 137, 44 N. E. 10S9.
The word "relocate, " without addition or qualification, means to locate again, and implies a preservation of the identity of the way without material change. Relocating is not intended to be used as a method of making important changes in a way. 29 C. J. 517, § 225, 2, note 96. The above power granted to the state highway department to resurvey and relocate the roadbed and right of way of a road taken over by it does not give to that body the authority to wholly abandon the road taken over, and to build an entirely new road. The power of relocation of a road does not confer the power of its abolition. The evidence demands a finding that the state highway department proposed to build a new interconnecting county site road of 25 or 30 miles in length, and to abandon the existing interconnecting county site road, which they had previously designated as such, and had taken over its construction and maintenance for a number of years. This they cannot do, especially under the provision of the highway act, which requires them first to designate and take over the maintenance of only interconnecting county site road before building other roads. The question whether the state highway board could erect a new road as a postroad is not involved, for the reason that they are undertaking to abandon the existing interconnecting county site road between Augusta and Waynesboro, and to substitute in its place a new interconnecting county site road.
2. The questions raised in the cross-bill of exceptions are controlled by the ruling in the case of State Highway Department of Georgia v. Marks, supra.
3. The court erred in not enjoining the state highway department as prayed.
Judgment reversed on main bill of exceptions; affirmed on cross-bill.
All the Justices concur, except BECK, P. J., and ATKINSON, J., who dissent.
On Motion for Rehearing.
In one of the grounds of the motion for rehearing it is insisted that we overlooked the decision in Jackson v. State Highway Department, 164 Ga. 434, 13S S. E. S47. In that case the authority of the state highway board to relocate a state-aid road connecting two county sites was not involved or decided. The petition in that case did not allege that the road from Greensboro to Sparta had been designated as a state-aid road and notice thereof given to the county of Greene, as required by the act of 1919. The petition alleged that, before route 15 was undertaken by the state highway department, there existed, and still exists, a much-traveled road between Greensboro and Sparta, being the original county site road of said county, and that it was being used as such, maintained, topsoiled, and worked by said department. This was the only allegation in that case which squinted at the fact that the old road between Greensboro and Sparta, which the petition alleges had been in use for 100 years, had been designated and taken over by the state highway department as the interconnecting county seat road between these two cities. The petition did not allege that the state highway department was abandoning or changing a state-aid road which it had designated and over which it had taken jurisdiction. It only alleged that the state highway department proposed to abandon this original route from Greensboro to Sparta, and to substitute therefor a new road between said towns. It further alleged that at one time the state highway department and the county authorities decided to use the original route between these towns, but now proposed to go said other route. It further alleged that petitioners were unable to know which route would be adopted, having been misled by promises from said authorities in charge that said original route would be finally adopted and used as a link of state route 15. The petition did not deny the authority of the highway department to locate route 15.
Paragraph 21 of the petition in that case was as follows: "Petitioners allege the adoption of said Siloam-White Plains route, with the attendant extra and additional cost it entails, and the longer distance of travel, and the inconvenience and extra cost of travel over the said Eatonton and Milledgeville roads to and from all points within this section and territory, and other facts herein alleged, not only amount to abuse of any discretion vested in said state and county boards to designate said road; but the same is contrary to the proviso of the state-aid road laws of Georgia, that due consideration shall be given in designating such roads to topographic and construction difficulties, and that the total mileage of such roads shall be limited, which said provisions have not been complied with in making said designation, and therefore reviewable by the courts."
Paragraph 22 was as follows: "Petitioners show that both Siloam and White Plains are incorporated towns in Greene county, and it is illegal to use state-aid road funds or state money to build roads through said incorporated towns, which is attempted to be done on said Siloam-White Plains route; and petitioners allege that the law passed by the General Assembly of said state, and approved April 21, 1922, undertaking to amend provision 5, section 5, article 5, Laws 1919, and amendments thereto, Acts 1921, by providing that said state highway board is authorized to construct and maintain state-aid roads in and through towns and cities of not more than 2, 500 people, as set out in Acts 1922, page 177, is unconstitutional and null and void in that it violates the provision of the Constitution of the state of Georgia as embodied in section 4, article 1, paragraph 1, of the Constitution, and section 6391 of Park's Code." An amendment to the petition alleged that the highway department had abused the discretion resting in it by law, in designating the Siloam and White Plains route, and that said designation of that route was illegal, in that no recognition of the unnecessarily expensive difficulties in laying out said road were considered or recognized, and that said designation was arbitrary, and of such unnecessarily enormous cost to petitioners and taxpayers of the state as to be oppressive and burdensome.
The facts upon which the plaintiffs relied to show that the highway board was abusing the discretion vested in it by law appear from the opinion in that case. In the brief of counsel for plaintiffs in error, filed in this court in that case, it was said: It will thus be seen that the plaintiffs in the case cited did not questionthe authority of the state highway department to locate route 15, but simply contended that there was an abuse of discretion in locating that route, instead of designating the old road between these towns as a state-aid road. As appears from the above extract from their brief, plaintiffs' counsel did not...
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Raines 6t Al v. Terrell County
...there is no abuse of discretion, as pointed out in Jackson Case, supra. Counsel for the plaintiffs rely upon Marks v. State Highway Department, 167 Ga. 792, 146 S. E. 838, as well as State Highway Department v. Marks, 167 Ga. 400, 145 S. E. 866. In neither of these cases was the opinion of ......